As I replied to Stephen in the comments to Stephan Kinsella’s Debate with Robert Wenzel on Intellectual Property:
That which exists is rivalrous. That which does not exist is non-rivalrous. So what?
As with seawater, air is also something you can put in a bottle and exclude others from (ask a scuba diver). Just because there’s a lot of it, it doesn’t mean it’s non-scarce (in the economic meaning, if not the layman’s meaning) or non-rivalrous.
The point is not whether the rivalrous nature of things that exist is interesting or useful to observe, but that it doesn’t actually justify or explain anything concerning property.
No other animal has ever been interested in excluding others from things that don’t exist. It takes extreme intelligence and stupidity/superstition to start believing that one can – a peculiarly human talent. It is also rather crazy to develop esoteric terms/jargon to discriminate between things that exist and things that don’t, and to claim, tautologously, that because things that exist don’t have the nature of those that don’t, ipso facto we have property rights.
One could also use other terms such as ‘physically manifest’ or ‘enclosable’ instead of ‘exist’, but the good thing about ‘exist’ is that it helps people recognise the absurdity of claiming property in things that don’t exist. And yes, people then have to be reminded that although we may recognise that things that exist may be in the shape of a triangle, this does not mean that the triangle exists. Moreover, just because we can conceive of abstract objects such as triangles, this also doesn’t mean those abstract objects exist – nor does it mean that the abstract thing we call a concept (of a triangle) exists either, though again, we may recognise this concept in arrangements of ink on paper (the arrangement exists – the concept doesn’t).
So, yes, because human beings (as most animals) have a physical and vital ability to exclude others from things that exist, a power to exclude, they have a have a natural and equal right to do so. ‘Rights’ granted by gods, kings, or states, are obviously not natural. Hence the power to prohibit copies granted by Queen Anne in 1709, was only obtained by annulling the people’s natural liberty and right to make copies, such that this right, by exclusion, could be left in the hands of a few – so called ‘copyright’ holders.
A paper manuscript containing ink arranged into a description of a formula or novel can be kept in a box, and others can be excluded from both the material and the intellectual work therein. Others cannot be excluded from that which does not exist, e.g. the abstract pattern of that work that permeates the abstract plane – which is a rather perverse thought to have in the first place.
In other words, drawing a triangle does not give one any natural power over the abstraction or others’ use of it. Conversely, simply because one has no power over the abstraction or its use doesn’t mean one has no natural power to exclude others from one’s drawing. The drawing of the triangle exists. The geometric concept of a triangle does not.
That which exists may be property, but it isn’t property because it exists, but because we have the natural power and right to exclude others from those alienable objects that exist in our possession.